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11/15/95 MARRIAGE E. ESTHER BARMAK

November 15, 1995

IN RE MARRIAGE OF E. ESTHER BARMAK, PETITIONER-APPELLEE, AND MARK E. BARMAK, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Lake County. No. 89-D-995. Honorable John T. Phillips, Judge, Presiding.

Petition for Leave to Appeal Denied January 31, 1996.

The Honorable Justice Geiger delivered the opinion of the court: McLAREN, P.j., and Inglis, J., concur.

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

The respondent, Mark Barmak, appeals from the trial court's order dismissing as untimely his petition for sanctions against the petitioner, Esther Barmak, pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137). We affirm.

We note at the outset that Esther has not filed a brief in this appeal. However, because we find that the issues presented are straightforward, we may resolve them without an appellee's brief in accordance with First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.

In 1993, Mark filed a petition seeking contribution toward the college expenses of one of the parties' children. Following an unfavorable ruling by the trial court on December 6, 1993, Mark filed a notice of appeal from that order. On March 7, 1994, Esther petitioned the trial court for an award of prospective attorney fees for the defense of the appeal pursuant to section 508(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/508(a)(3) (West 1994)).

Mark filed a motion to strike and dismiss the petition due to Esther's failure to properly allege her inability to pay her own attorney fees. Mark's motion was granted, and Esther was given 21 days in which to amend her petition for fees. Mark's request for sanctions under Rule 137 for the filing of the fee petition, however, was denied.

On May 9, 1994, Esther filed an amended petition for fees on appeal. Once more, the court dismissed the petition on Mark's motion, giving Esther leave to replead within 28 days. Again, the court denied Mark's request for Rule 137 sanctions for the filing of the amended fee petition.

On August 2, 1994, Esther filed her second amended petition for fees, alleging that she was unable to pay both the retainer to her appellate attorney and her ordinary living expenses. On September 28, 1994, the trial court denied Mark's motion to dismiss the second amended petition, ordered him to respond to the petition within 14 days, stated that discovery would be completed within 30 days thereafter, and set the matter for hearing on December 16, 1994.

On November 1, 1994, however, Esther filed a motion to voluntarily dismiss her fee petition pursuant to section 2-1009 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1009 (West 1994)). In his response, Mark argued that the motion should be granted but that the petition should be dismissed with prejudice. On November 1, 1994, the court granted Esther's motion. The order stated: "Esther Barmak's motion for voluntary dismissal is granted and petitioner's second amended petition for attorney's fees for defense of appeal is dismissed, without prejudice, over respondent's objection."

On February 13, 1995, Mark filed a petition for sanctions against Esther and her counsel "for violating Rule 137 and filing a false pleading," alleging that all three petitions for fees were false. On March 20, 1995, Esther's counsel, Paul Jenen, filed his own motion for sanctions against Mark and Mark's counsel, arguing that Mark's petition for sanctions was "grossly improper" and that, as the trial court was without jurisdiction to proceed on Mark's petition for sanctions, Jenen was entitled to fees expended in defending against Mark's petition.

On March 20, 1995, the court denied Mark's petition, stating that it had been filed "over 30 days after the non-suit of the motion at issue." The court also ordered Mark to respond to Jenen's Rule 137 motion setting the motion for hearing.

On April 12, 1995, the court denied Mark's motion to reconsider, Jenen's motion for Rule 137 sanctions, and Mark's motion to strike Jenen's motion. In its order, the court noted "that there was a genuine dispute with reference Mark's Rule 137 ...


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